Posted on 11/20/17

A man calls 911 to report that he found another man’s body and a magazine clip near the body. The police suspect that the man may have been the killer, so they arrest him on unrelated warrants. The detective handling the case obtains a copy of a forensic report and then edits to say, “Examination of Item 1 revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of [man’s name].” In reality, the man’s name was never on the report. This compels the man to confesses to the murder.

At trial, the defense presents evidence that the detective forged the man’s name, causing the court to conclude that the confession should be thrown out. Specifically, the detective knowingly altered a document with intent to effectuate a confession in connection with an investigation.  This is known as the Texas exclusionary rule.

The Exclusionary Rule

Section 37.09 of the Texas Penal Code provides:“(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he … makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding. (b) This section shall not apply if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.”

The Texas Court of Criminal Appeals in the 1977 caseDrago v. Stateexplained the point of the exclusionary rule is that evidence that is intentionally falsified should be excluded because it deters police from acting unlawfully when conducting an investigation.

Exclusionary Rule Protection

The Court of Criminal Appeals ruling demonstrates how far the exclusionary rule goes to protect defendants. Arguably, the detective who doctored the report did not make any false statements; instead, it used evidence of the magazine clips to show that the man committed the crime. One can read the report to state that the man committed the crime based on forensic evidence even though it did not state his name outright on the report. Based on such logic, the detective did not falsify the evidence.

What’s more, the language in the statute reads “makes presents, or uses any record…of its falsity…” One can read the language that there is an emphasis on falsifying records. In the case above, one can argue that what the detective did does not fall under the protection of the statute because the detective did not falsity anything; instead, the detective brought to light the “truths” in the report.

However, the Court did not read the statute in that manner. Instead, the statute is broad and provides those accused of crimes in Texas with a tool that can be used to exclude otherwise incriminating evidence.

Accused of a serious crime? You need a zealous advocate on your side. Contact the law office Chritopher Abel, a zealous advocate for those accused of crime.

(image courtesy of David Beale)


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